We’re long past the days of Mad Men-style cigarettes in the office, but some say a looming spike in the number of Canadians using medical marijuana could force the return of “smoking rooms” to workplaces across the country.

In an era of smoking bans on patios, parks and restaurants, the notion may seem absurd, but those relying on marijuana to ease chronic pain and other conditions may soon be demanding accommodation for their medically prescribed and commercially grown medication.

“We think this is going to be a big issue,” said Kecia Podetz, a partner at Ottawa’s Emond Harnden LLP specializing in employment law. “There is an immediate reaction, because historically we don’t allow employees to smoke marijuana in the workplace. But, once you get past that and think, ‘this is a prescription from a doctor and it must be treated like any other prescription,’ all the usual accommodations come into play.”

Employers have a legal obligation to accommodate their employees when it comes to sickness or disability in the workplace. The obligation is enshrined in the Canadian Human Rights act as well as the Occupational, Health and Safety Act and is known as an employers’ “duty to accommodate” employees with special needs.

The issue has already begun to create buzz. In November, Cpl. Ronald Francis, a Royal Canadian Mounted Police Officer in New Brunswick, was stripped of his uniform after it was discovered he was smoking marijuana on the job. Francis had obtained a prescription for three grams of medical marijuana a day to control symptoms from Post Tramatic Stress Disorder suffered while serving in First Nations communities.

The case sparked a wave of controversy.

Experts believe that, thanks to new legislation, which was enacted on April 1 and has in some ways made it easier for Canadians to access medical marijuana, more controversial cases will materialize. Some may even make their way to Canada’s courts

By making marijuana a controlled substance that can be prescribed by doctors, the once taboo-weed becomes a medication that employers must allow in the workplace.

There are already more than 40,000 Canadians who are using marijuana for medicinal purposes. Health Canada says it expects that number to jump to more than 480,000 users in the next 10 years.

Large employers across the country are now quietly reviewing corporate policies to determine set methods of dealing with any workers that may be prescribed marijuana, and they are looking to lawyers such as Podetz and others for guidance.

The issue is complex — besides an employer’s legal obligations, the Smoke-Free Ontario Act only applies to smoke created by “tobacco” and “tobacco products.” It doesn’t cover smoke created by marijuana, meaning issues pertaining to smoking in the workplace are once again being discussed.

A spokeswoman for Ontario’s Ministry of Health and Long-Term Care confirmed that the act can’t prevent a person with a prescription from smoking marijuana in a work environment or in a public place. They also said there is no movement from government to amend the act.

An employer is expected to accommodate a worker up to the point of “undue hardship,” according to the Occupational, Health and Safety Act. While an employee with a prescription for marijuana can’t infringe on the rights of their co-workers by smoking in the open, an argument could be made for a private smoking room, allowing employees who need to use marijuana, the ability to do so discreetly.

“An employee using marijuana may say, ‘This is different because smoking a cigarette in the building is prohibited by law. You have to accommodate me,” said Carl Cunningham, a partner in the employment law practice at law firm Bennett Jones LLP. “If an individual is saying, ‘This is a medical condition … and this is a private issue and I want privacy to deal with that.’ This is a prescribed medication. What they’re doing is not unlawful and if it’s related to a medical condition, an employer will have a duty to accommodate.”

“Reasonable accommodation may be a private and separate area where the fumes do not affect other workers and where the employee can take, what is now, lawful medication.”

Cunningham said not all employees will be able to argue that they should be allowed to smoke marijuana on the job. Workers in jobs where their personal safety is a concern, such as a forklift operator, professional driver or law enforcement official, would likely need to have their jobs reclassified to accommodate their prescription.

While the issues surrounding marijuana are new, Cunningham said that employers have dealt with similar issues pertaining to drugs such as Percocet and OxyContin, which have also been available through prescriptions and have the ability to alter a person’s state of mind.

According to the law, an employer is expected to accommodate employees up to the point of “undue hardship.” However, “undue hardship” is not defined by the law, meaning that any disagreement about the marijuana issue in the workplace could end up before federal courts.

The onus is largely on the employer to make things work and simply claiming that a private smoking room is not viable due to cost isn’t a valid reason to deny the employee.

“Simply declaring that the cost is too high of that there is unreasonable risk to health and safety does not constitute undue hardship,” reads a primer for employers on undue hardship placed on Treasury Board of Canada Secretariat’s webpage. “To prove undue hardship, you must provide substantial evidence and document it.”

Jamie Shaw, president of Canadian Association of Medical Cannabis Dispensaries, said the fact that businesses are discussing the issue in preparation for the months and years ahead, is a positive step for medical marijuana users as it forces organizations to think of marijuana as a medicine and less like an illicit drug.

“There is still a lot of confusion around it,” said Shaw. “In terms of breaking stigma, this is really good stuff. It’s bringing a lot of those stigmas to light.”

The new legislation surrounding how medicinal marijuana is prescribed came after Federal Courts ruled that the drug must be made more accessible to patients.

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